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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, Chester, N.Y. We can be reached at www.bergsteinullrichlaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

Tuesday, March 19, 2013

How to plead an FLSA overtime claim

Pleading requirements under Iqbal will result in a Rule 12 dismissal unless the complaint alleges a plausible claim. The Court of Appeals provides guidance on how Iqbal applies to overtime claims under the Fair Labor Standards Act.

The case is Lundy v. Catholic Health System, decided on March 1. The plaintiffs alleged that the Catholic Health System "used an automatic timekeeping system that deducted time from paychecks for meals and other breaks even though employees frequently were required to work through their breaks, and that CHS failed to pay for time spent working before and after scheduled shifts, and for time spent attending training programs." The plaintiffs tried on numerous occasions to amend the complaint to avoid Rule 12 dismissal, but the district court dismissed the case on various grounds, including that plaintiffs did not sufficiently allege an employer-employee relationship, the automatic timekeeping deductions did not cost the plaintiffs overtime and the plaintiffs did not allege that their compensable time exceeded 40 hours, as required under the FLSA.

The Court of Appeals affirms on the ground that the plaintiffs did not adequately allege in the complaint that they worked more than 40 hours per week. This case, therefore, provides guidance about how to plead a claim like this without having it tossed aside under the pleading requirements set forth in the Supreme Court's Iqbal ruling, which requires plaintiffs to allege a plausible claim in order to proceed to discovery.

The Court of Appeals (Jacobs, Walker and retired Supreme Court Justice Sandra Day O'Connor) says, "we conclude that in order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours." Nowhere in the complaint do the plaintiffs actually allege that they worked enough hours for an overtime claim. Here are the particulars as to why the complaint fails:

Wolman was “typically” scheduled to work three shifts per week, totaling 37.5 hours. She “occasionally” worked an additional 12.5-hour shift or worked a slightly longer shift, but how occasionally or how long, she does not say; nor does she say that she was denied overtime pay in any such particular week. She alleges three types of uncompensated work: (1) 30-minute meal breaks which were “typically” missed or interrupted; (2) uncompensated time before and after her scheduled shifts, “typically” resulting in an additional 15 minutes per shift; and (3) trainings “such as” a monthly staff meeting, “typically” lasting 30 minutes, and respiratory therapy training consisting of, “on average,” 10 hours per year.

She has not alleged that she ever completely missed all three meal breaks in a week, or that she also worked a full 15 minutes of uncompensated time around every shift; but even if she did, she would have alleged a total 39 hours and 45 minutes worked. A monthly 30-minute staff meeting, an installment of the ten yearly hours of training, or an additional or longer shift could theoretically put her over the 40-hour mark in one or another unspecified week (or weeks); but her allegations supply nothing but low-octane fuel for speculation, not the plausible claim that is required.

Iwasiuk “typically” worked four shifts per week, totaling 30 hours. She claims that “approximately twice a month,” she worked “five to six shifts” instead of four shifts, totaling between 37.5 and 45 hours. Like Wolman, Iwasiuk does not allege that she was denied overtime pay in a week where she worked these additional shifts. By way of uncompensated work, she alleges that her 30-minute meal breaks were “typically” missed or interrupted and that she worked uncompensated time before her scheduled shifts, “typically” 30 minutes, and after her scheduled shifts, “often” an additional two hours.

Maybe she missed all of her meal breaks, and always worked an additional 30 minutes before and two hours after her shifts, and maybe some of these labors were performed in a week when she worked more than her four shifts. But this invited speculation does not amount to a plausible claim under FLSA.

Lundy worked between 22.5 and 30 hours per week, and Plaintiffs conceded below--and do not dispute on appeal--that he never worked over 40 hours in any given week